Dincans v. Keeran , 192 S.W. 603 ( 1917 )

Appellees, Claude Keeran and Mrs. M. J. Keeran, brought this suit against appellants to recover damages caused by trespassing upon the inclosed lands owned by appellees, and to restrain appellants from further trespass thereon. Appellants denied the trespass, alleging that they camped on the shore line of the navigable stream; and from the shore line fished in the stream.

The court instructed a verdict for appellees, and thereupon decreed that appellees recover from appellants one cent and costs, and that appellants be perpetually restrained from entering upon appellees' land for the purpose of hunting, fishing, and camping thereon. And the decree further enjoined appellants from trespassing or entering upon the pasture inclosure of the plaintiff's for all or either of said purposes.

The evidence justified the court's peremptory instruction, because it is undisputed that appellants used the inclosed lands of appellees for the purpose of hunting, fishing, and camping: First, in order to reach the navigable stream; and, again, to supply their camp with water from the artesian well of appellees. Appellants attempted to allege and prove permission for the drinking water trespass, but failed. Permission from the colored cow skinner was not authorized, and, besides, was obtained after trespass. The danger of damage to appellees' cattle was proven.

It seems, however, that the trial court's decree was too comprehensive, in this, that it not only enjoined appellants from trespass upon the lands owned by appellees, but also restrained appellants from the enjoyment of their lawful right to use the shore line of the navigable waters, which formed the western boundary of appellees' land.

It will be observed that the petition of appellees contained two conflicting descriptions of their lands: first there is the description of the recorded title; second, this description: All lands within appellees' pasture inclosure.

The lands described in the title papers passed out of the sovereignty in 1833, while the civil law controlled, and that description extended the western boundary only to the line marked by the highest tide of the navigable waters, which were affected by the ebb and flow of the tide from the Gulf through intervening named bays. Hynes v. Packard, 92 Tex. 44,45 S.W. 562; De Merit v. Robison, 102 Tex. 358, 116 S.W. 796.

The second description, "All lands within appellees' Pasture inclosure," extended, not to the line of the highest tide according to the title, but to the waters' edge, and thereby included in the pasture inclosure the shore line as definitely defined in the opinion in Hynes v. Packard, 92 Tes. 44, 45 S.W. 562.

There was an abundance of evidence that the pasture inclosure contained land lying between the low and highest tide. By the term "highest tide" we must not be understood to mean the highest crest of storm driven sea water.

In and upon the shore line, as fixed by the civil law in this instant case, and in and upon the navigable waters, appellants enjoyed rights coequal with appellees. Neither could have the other enjoined from the reasonable use of either. City of Austin v. Hall, 93 Tex. 591, 57 S.W. 563. Burrus Ferry B. C. Ry. Co. v. Allen, 164 S.W. 878; Orange Lumber Company v. Thompson, 59 Tex. Civ. App. 562, 126 S.W. 604.

Hunting, camping, and fishing are reasonable uses of the navigable waters and shore line. State ex rel. Cates, v. West. Tenn. Land Co.,127 Tenn. 575, 158 S.W. 746, Ann.Cas. 1914B, 1043, and authorities cited therein.

Appellees could acquire an exclusive or prior right to the shore line in only one way, and that is from the state by express legislative act clearly granting it. No state ministerial officer under the present laws could lease or sell or in any other way grant such exclusive privilege. Hynes v. Packard, 92 Tex. 44, 45 S.W. 562.

We therefore conclude that the judgment should be reformed by striking from the restraining order the following words: "And from trespassing or entering upon the pasture inclosure of the plaintiffs for all or either of said purposes." As thus reformed the judgment of the trial court is affirmed. All costs of this court adjudged against appellants.

Reformed and affirmed.